CourtListener opinion 2693050

Evidence quotes

Clean opinion text

[Cite as Ulery v. Ulery, 2013-Ohio-4951.]

 IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

LISA B. ULERY :

 Plaintiff-Appellee : C.A. CASE NO. 2013 CA 39

v. : T.C. NO. 08DR437

JEFFREY S. ULERY : (Civil appeal from Common
 Pleas Court, Domestic Relations)
 Defendant-Appellant :

 :

 ..........

 OPINION

 Rendered on the 8th day of November , 2013.

 ..........

VALERIE JUERGENS WILT, Atty. Reg. No. 0040413, 333 N. Limestone Street, Suite 104,
Springfield, Ohio 45503
 Attorney for Plaintiff-Appellee

P. J. CONBOY II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424
 Attorney for Defendant-Appellant

 ..........

FROELICH, J.

 {¶ 1} Jeffrey Ulery appeals from a judgment of the Common Pleas Court of

Clark County, Domestic Relations Division, which denied his motion for modification of his
 2

spousal support obligation.

 {¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

 {¶ 3} In December 2008, Mr. Ulery pled guilty to one count of conspiracy to

commit aggravated murder and was sentenced to four years of imprisonment.

 {¶ 4} In January 2009, Mr. Ulery and his wife, Lisa, were divorced after 27 years

of marriage. One of their children was still in high school at the time of the divorce, but by

May 2009, the child had graduated and reached the age of majority. At the time of the

divorce, the trial court found that Mr. Ulery was voluntarily unemployed due to his

"self-induced" incarceration, which "voluntarily reduced his earning ability." Based on his

income in 2006 and 2007, and his expected income (prior to his legal troubles) in 2008, the

court imputed income to Mr. Ulery of $98,819. 1 Among other provisions, the divorce

decree ordered Mr. Ulery to pay spousal support of $1,500 per month for nine years. In the

division of marital assets, the court awarded Ms. Ulery a disproportionate share of the assets,

for which Mr. Ulery received a "credit" against his spousal support obligation for 31 months.

 The court delayed the requirement that Mr. Ulery make spousal support payments until

August 2011, holding that his spousal support "credit" applied to most of the period during

which he was incarcerated. The court retained jurisdiction over the issue of spousal

support.

 {¶ 5} Mr. Ulery appealed from the trial court's final judgment and decree of

divorce, challenging several provisions, including its award of spousal support and the

 1
 In the decree of divorce, the court discussed the imputation of income in awarding child support, rather than spousal
 support, but it incorporated this finding into its discussion of spousal support. In his motion for modification, Mr. Ulery
 compares his post-incarceration income to the imputed income.
 3

property division. We affirmed the trial court's judgment. Ulery v. Ulery, 2d Dist. Clark

No. 2009-CA-12, 2011-Ohio-5211.

 {¶ 6} In early 2012, Mr. Ulery was released from prison and filed a motion in the

trial court for "modification of spousal support and accompanying property division." Mr.

Ulery argued that he had not made the income imputed to him ($98,819) since 2007, that

Ms. Ulery's income had increased since the divorce, and that the court should reconsider

the property division "due to the parties['] current financial situations."

 {¶ 7} While Mr. Ulery's motion was pending, Ms. Ulery filed a motion

requesting a qualified domestic relations order to facilitate some aspects of the property

division set forth in the divorce decree, which had been delayed by various legal proceedings

since the time of the divorce. Mr. Ulery's request that the trial court revisit the property

settlement seems to have been based, in part, on the fact that all of the assets had not yet

been distributed. The trial court granted Ms. Ulery's request for a QDRO in August 2012.

 {¶ 8} In its order, the court characterized the "‘credits' afforded to Mr. Ulery

against his spousal support obligation" as a lump sum award of spousal support, rather than

a property division. The court held that Mr. Ulery's request to modify the property division,

which effectuated the payment of spousal support while he was in prison, constituted an

impermissible request for a retroactive modification of spousal support. The court found

that Mr. Ulery's February 2012 request for modification of spousal support could seek such

modification only prospectively.

 {¶ 9} While Mr. Ulery's motion was pending, the court, on its own initiative,
 4

asked the parties to address the applicability of Senate Bill 337, the "Second Chance Law,"

which went into effect in September 2012. According to the trial court, the law was

designed to "reform and limit collateral sanctions that may affect or hinder an ex-inmate's

reentry into society after serving a prison term." The court ultimately concluded that the

law's provisions were inapplicable to spousal support.

 {¶ 10} The court further concluded that no modification of spousal support was

warranted, because there had been no change of circumstances that was not contemplated at

the time of the divorce and because Mr. Ulery's earnings and "significant assets" enabled

him to satisfy the obligation.

 {¶ 11} Mr. Ulery appeals from the trial court's judgment, raising one assignment

of error:

 THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

 APPELLANT'S MOTION FOR MODIFICATION OF SPOUSAL

 SUPPORT.

 {¶ 12} Mr. Ulery contends that the trial court abused its discretion in concluding

that Am.Sub.S.B. 337 did not apply to spousal support and in denying his request for a

modification of spousal support.

 {¶ 13} Am.Sub.S.B. 337 amends or enacts more than 70 sections of the Revised

Code, many of which are irrelevant to the issues presented herein. However, it amended

R.C. 3119.05(I)(2) (R.C. 3119.05 is titled "Requirements when court computes child

support") as follows:

 Unless it would be unjust and inappropriate and therefore not in the best
 5

 interests of the child, a court or agency shall not determine a parent to be

 voluntarily unemployed or underemployed and shall not impute income to

 that parent if either of the following conditions exist:

 ***

 *** The parent is incarcerated or institutionalized for a period of twelve

 months or more with no other available assets, unless the parent is

 incarcerated for an offense relating to the abuse or neglect of a child who is

 the subject of the support order * * *.

Relying on this amendment, Mr. Ulery argued that spousal support should be treated

similarly to child support, because it "can have the same effect on an individual's ability to

transition back into society," and that his obligation, in particular, was "definitely a

hinderance [sic] to his transition back into society."

 {¶ 14} The court rejected Mr. Ulery's argument that the court should extend the

Second Chance Act's proscription on findings of voluntary unemployment or

underemployment and imputation of income to spousal support. In so holding, the trial

court noted that Am.Sub.S.B. 337 specifically refers to child support (R.C. 3119.05), but

contains "no similar provision * * * relating to the issue of spousal support" awards or

modifications (R.C. 3105.18). The court also noted that, even if the Act applied to spousal

support, it would not apply to Mr. Ulery, because he was awarded "substantial marital

assets" from which he could pay spousal support, and he still had those assets at the time of

the hearing.

 {¶ 15} Although we understand Mr. Ulery's argument that the "collateral
 6

consequence" of having to pay spousal support may "hinder an ex-inmate's reentry," that

was not the policy decision made by the legislature. Mr. Ulery's argument that the trial

court should have extended the new child support provision (R.C. 3119.05(I)) to spousal

support would have required to trial court to graft the child support provision of

Am.Sub.S.B. 337 onto another unrelated statute which was not mentioned in the Act. Such

an expansive reading exceeds the province of the trial court. The trial court reasonably

presumed that the legislature would have expressly included such a provision if it had

intended for the law to affect spousal support. The trial court did not err in rejecting this

argument.

 {¶ 16} None of this is to say that a court should not consider a spouse's earning

ability and assets, as those may have been affected by his previous incarceration. In this

regard, Mr. Ulery also contends that the trial court abused its discretion in refusing to modify

his spousal support obligation because: 1) following his incarceration, he had been unable

to obtain employment at the income level imputed to him (approximately $98,000), 2)

having been released from prison, he now must pay for his own living expenses, and 3) Ms.

Ulery's income had increased since the divorce. Mr. Ulery also contends that the court

should have based its decision on his actual post-incarceration income of $35,000, rather

than its determination that he "could make" $50,000 per year.

 {¶ 17} A trial court's decision on a motion to modify spousal support is reviewed

for an abuse of discretion. Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d

1140 (1983). If a decision is unreasonable, arbitrary or unconscionable, it must be

reversed as an abuse of discretion. Id.
 [Cite as Ulery v. Ulery, 2013-Ohio-4951.]
 {¶ 18} The modification of a spousal support award requires a finding that a

substantial change of circumstances has occurred "that had not been contemplated and taken

into account by the parties or by the court at the time of the prior order." R.C. 3105.18(E);

Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172, ¶ 31.

 {¶ 19} The trial court's initial finding that Mr. Ulery had "voluntarily reduced his

earning ability" by engaging in criminal activity was no less valid after he served his

sentence than it had been earlier. The fact that Mr. Ulery did not obtain employment at a

rate comparable to what he had earned prior to his conviction was contemplated at the time

of the divorce decree.

 {¶ 20} The court's conclusion that Mr. Ulery was able to earn $50,000 after his

release was also reasonable. Mr. Ulery testified that he worked for MediBag Company,

Inc., as an independent contractor and that he earns an average of $700 to $800 per week,

but that it varies and can be as much as $1,200 per week. He also had substantial assets.

The following findings by the court were supported by the record:

 * * * Mr. Ulery presented testimony that he earns between $700.00 to

 800.00 per week which extrapolates to gross income of approximately

 $39,000.00 per year. Upon cross-examination, however, he also

 acknowledged that he indicated at his prior deposition that he could make

 between $48,000.00 and $50,000.00 per year at his current job if he chose to

 do so. He also testified at the hearing herein that he is contemplating a

 relocation to the state of Nevada to work for a venture capital group which he

 is hopeful will result in significantly greater income than that which he

 currently realizes.
 [Cite as Ulery v. Ulery, 2013-Ohio-4951.]
 It is also significant to note that Mr. Ulery has, at his disposal,

 signifincant assets appearing in the form of stock, bank accounts, investment

 accounts, and retirement accounts. Specifically, Mr. Ulery testified that he

 has stock with Bob Evans with an approximate fair market value of

 $11,000.00; stock with Huntington Bank with an approximate value of

 $14,000.00; stock with Boston Capital which was a $12,000.00 initial

 investment and the current fair market value being unknown. He also has a

 checking account at Huntington Bank with an approximate balance of

 $21,000.00. Mr. Ulery also has an Edward Jones retirement account with an

 approximate balance of $40,000.00. * * *

 During the course of his incarceration, Mr. Ulery spent in excess of

 $40,000.00 for investment ventures as well as attorneys fees. Further, on

 May 7, 2012, he purchased a Toyota Camry automobile for $30,649.00 plus

 tax. Despite the foregoing expenditures, Mr. Ulery has never made a

 payment toward his spousal support obligation despite the fact that his actual

 monthly payments should have begun August 6, 2011. It is clear that Mr.

 Ulery had sufficient assets to begin making his periodic payments even

 though he was still incarcerated at that time. (Emphasis added.)

 {¶ 21} Additionally, the court noted that Mr. Ulery does not help with any

expenses related to the parties' college-age children, whereas Ms. Ulery does; although

neither party was legally obligated to help with these expenses, the court found that those

expenses were "significant" and "should not be simply ignored." The court also observed

that Ms. Ulery had fewer assets at the time of the hearing than at the time of the divorce,
 9

because Mr. Ulery's "objections, appeals, and motions for recusal" allowed him to avoid the

division of the parties' financial accounts and because he had not made spousal support

payments.

 {¶ 22} With respect to Ms. Ulery's income from working as a teacher, the court

found that she was "already realizing her full earning capacity," meaning that she was

unlikely to see substantial increases in her income in the future. Ms. Ulery's gross annual

income had increased approximately $9,000.00 since the divorce, which she attributed to

"incremental pay raises."

 {¶ 23} Based on the evidence presented, the trial court reasonably concluded that

there had been no change of circumstances that had not been contemplated at the time of the

divorce and that Mr. Ulery had ample assets and income from which to meet his spousal

support obligations. The court did not abuse its discretion in denying Mr. Ulery's motion to

modify spousal support.

 {¶ 24} The assignment of error is overruled.

 {¶ 25} The judgment of the trial court will be affirmed.

 ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Valerie Juergens Wilt
Patrick J. Conboy II
Hon. Thomas J. Capper